http://www.lincolntribune.com/modules/news/article.php?storyid=5701
Opinion : Duke Rape Case Could Create Major Civil Liability Not Only For DA Nifong, But Also For Durham County
by Professor John F. Banzhaf III
As the rape case against three Duke lacrosse players continues to unravel, and instances of apparent prosecutorial misconduct multiply, it appears increasingly likely that the accused students will be able to recover civil damages against the county and perhaps also the district attorney, says the public interest law professor who has successful orchestrated legal actions against several major governmental figures, including former Vice President Spiro T. Agnew.
"Although prosecutors generally enjoy absolute immunity from civil liability for violating the constitutional rights of defendants, there are instances -- and this may well be one of them -- where that immunity doesn't apply," says Law Professor John Banzhaf. Moreover, Durham County, NC, does not have absolute immunity, and so the county could be held liable for millions of dollars in civil damages even if District Attorney Michael Nifong is protected from law suits, notes Banzhaf.
"Generally, district attorneys -- acting within their narrow role as prosecutors -- have absolute immunity, and cannot be sued even if they violate a defendant's constitutional rights intentionally, in bad faith, and with malice. This means that, even if it can be proven that Nifong engaged in gross prosecutorial misconduct in prosecuting the students while knowing they were innocent, and did so wrongfully and only for political purposes, he might not be held civilly liable."
On the other hand, the U.S. Supreme Court has carved out an exception when a prosecutor is acting not as an "advocate" performing functions intimately connected with the judicial phase of the criminal proceeding, but rather as an "investigator" or "administrator." In such cases he enjoys only a qualified immunity, and can be held liable if his misconduct violated clearly established legal standards of which a reasonable prosecutor would have known.
Under this so-called functional approach, actions taken before probable cause is established make the prosecutor an "investigator," entitled only to qualified immunity. After probable cause is established, a prosecutor may be acting as either an "investigator" or an "advocate," depending on the function being performed, and thus the function being performed after probable cause has been established determines whether or not absolute immunity applies.
For example, since only qualified immunity applies to functions such as providing legal advice to the police and cooperating in police investigative work, prosecutors who conspire with police to fabricate evidence during the preliminary investigation, or made false statements of fact in an affidavit supporting an application for an arrest warrant, may enjoy only qualified immunity -- and thus be held liable. It would also appear that granting numerous interviews with the media is outside the protected role of an advocate, especially if the information goes far beyond what is stated in official court documents, and includes even name calling.
Even if Nifong is found to be shielded from civil liability by absolutely immunity, such immunity does not apply to the county which he represents, so Durham County, NC, could wind up being civilly liable even in Nifong escapes liability. Considering the emotional suffering -- not to mention the legal and other out-of-pocket expenses -- this criminal proceeding has subjected the defendants to, a jury could award a very significant verdict to compensate them, says Banzhaf.
Congressman Walter Jones [R-NC] has called for a federal investigation to determine if Nifong's actions constituted prosecutorial misconduct and denied the students their civil rights. In his letter to the Department of Justice, he spells out allegations which could make Nifong personally liable:
"First, Mr. Nifong directed the Durham Police Department to knowingly violate suspect identification procedures for police personnel in North Carolina," Jones continued. "These procedures require that during any suspect identification process, a suspect's photo must be shown with those of non-suspects. Mr. Nifong not only directed that this not be done, he also directed the police to tell the accuser that she would only view photos of Duke lacrosse athletes who were at the party. By doing so, Mr. Nifong ensured that the accuser could not make a mistake no matter who she identified because she would inevitably identify Duke athletes."
Since all these actions occurred during the initial investigatory phase, Nifong cannot claim absolute immunity with regard to them, notes Banzhaf.
More recently, the head of a private DNA laboratory said under oath that he and Nifong agreed not to report DNA results favorable to Duke lacrosse players charged with rape, even though this violated the protocols of his own lab.
Moreover, the U.S. Supreme Court, and the Rules of Professional Conduct governing N.C. lawyers, require prosecutors to give the defense all favorable evidence. N.C. law goes further by requiring Nifong to hand over all evidence. Since these actions appear to have involved investigation and administration -- rather than the prosecution of the case -- Nifong may likewise not be entitled to absolute immunity with regard to this action.
Professor John F. Banzhaf III
Professor of Public Interest Law
George Washington University Law School
FAMRI Dr. William Cahan Distinguished Professor
http://banzhaf.net
That splash you just heard was the sound of Mike Nifong being thrown overboard by the legal community.
They're starting to come out of the woodwork now. This man will be dethroned from his catbird seat of tyranny.